Medical Malpractice Update Edna L. McLain and Tammera E. Banasek HeplerBroom LLC, Chicago How to Be Thankful When Settling a Wrongful Death Claim T is the season for celebration and giving thanks, and never as an attorney are you seized more by the need to celebrate and give thanks than when you resolve a difficult wrongful death lawsuit for a client. However, before you make that celebratory toast, ask yourself whether your client settled with the proper plaintiff. Now, you may be scoffing at this point, thinking that you obviously settled with the proper plaintiff. After all, you settled with the plaintiff who filed the lawsuit, but when dealing with a cause of action under the Wrongful Death Act,740 ILCS 180, relying on the case caption is not going to be enough. What is the plaintiff s relationship to the decedent? Did you identify all of the decedent s next of kin? Were all of the next of kin properly notified of the lawsuit? Did the next of kin know who was acting as the plaintiff on behalf of the decedent s estate? Did a probate court appoint a representative different from the named plaintiff in your case? These are all important questions that you need to have answered long before any settlement in your case is even discussed. The case of Pruitt v. Jockisch, 228 Ill. App. 3d 295 (4th Dist.1992), provides a cautionary tale for defense counsel about the potential implications when a settlement is undertaken without notice to the proper beneficiaries under the Illinois Wrongful Death Act. In Pruitt, the defendant ended up paying twice when the decedent s father was not given notice of the lawsuit. This Medical Malpractice Update serves as a review of issues to consider when determining if you have a proper plaintiff in a wrongful death suit, and it also outlines the pitfalls of what could happen if you do not properly prepare your case. Appointment and Notice under the Wrongful Death Act The Illinois Wrongful Death Act (the Act), codified at 740 ILCS 180, provides a remedy to certain limited and defined individuals when a death occurs as a result of negligence. The Act states that a wrongful death claim,shall be brought by and in the names of the personal representatives of such deceased person, and, except as otherwise hereinafter provided, the amount recovered in every such action shall be for the exclusive benefit of the surviving spouse and next of kin of such deceased person.740 ILCS 180/2. Next of kin are defined as those definite blood relatives of the decedent in existence at the time of the decedent s death who would take personal property if the decedent died intestate. Baez v. Rosenberg, 409 Ill. App. 3d 536 (1st Dist. 2011). Illinois courts look to the laws of intestacy to determine the next of kin under the Act. Id. Further, while the Illinois Probate Act, 755 ILCS 5, provides guidance concerning intestate succession, reliance on the Probate Act is limited to determining the possible class of beneficiaries of a wrongful death claim. Johnson v. Provena St. Therese Med. Ctr., 334 Ill. App. 3d 581, 591 (2d Dist. 2002). Proceeds from a wrongful death claim are distributed according to the laws of intestacy, not the Probate Act. Id. IDC Quarterly Volume 27, Number 1 (27.1.32) Page 1
Unlike a survival action, a wrongful death claim does not require the opening of a probate estate to prosecute the claim. Section 2.1 of the Act states: In the event that the only asset of the deceased estate is a cause of action arising under this Act, no petition for letters of office for his or her estate has been filed, the court, upon motion of any person who would be entitled to recovery under this Act, and after such notice to the party s heirs or legatees as the court directs, and without opening of an estate, may appoint a special administrator for the deceased party for the purpose of prosecuting or defending the action. 740 ILCS 180/2.1. Therefore, a trial court has authority to appoint a special administrator when the lawsuit is the only asset of the estate and no probate estate has been opened. Cushing v. Greyhound, 2012 IL App (1st) 100768. However, if a probate court issues letters testamentary or letters of administration, a trial court has no authority to appoint another individual as the special administrator to prosecute the wrongful death claim. Estate of Redeker v. Redeker, 210 Ill. App. 3d 769 (4th Dist. 1991). Only the individual holding the letters testamentary or letters of administration from the probate court is able to act on behalf of the estate, and only that individual may resolve the lawsuit and enter into a settlement. Further, neither a representative appointed by probate nor a special administrator appointed by a trial court must be a next of kin in order to serve. Carter v. SSC Odin Operating Co., LLC, 2012 IL 113204, 33. However, both have fiduciary duties to litigate the lawsuit to conclusion in order to distribute the proceeds of the lawsuit to the wrongful death beneficiaries. Johnson, 334 Ill. App. 3d at 590. Regardless of what title is given, the individual appointed to serve is obligated to act in the utmost good faith to protect the beneficiaries interests and must exercise at least that degree of skill and diligence that a reasonably prudent person devotes to his or her personal affairs. Id. Once an appointment is made by either the probate court or the trial court, the appointed individual has an obligation to identify and notify those individuals who are the proper eligible beneficiaries of the wrongful death award. Id. Notice under the Illinois Probate Act requires mailing a copy of the petition appointing a representative and admitting a will to probate to the address of any heir or legatee, or publishing a newspaper notice for three weeks. 755 ILCS 5/6-10. This is to provide notice to any eligible beneficiary of the wrongful death claim and appointment of a representative or administrator to allow for any objections by the beneficiaries. To understand why this is important, we need to consider the holding in Pruitt v. Jockisch. Pruitt v. Jockisch A Cautionary Tale In Pruitt v. Jockisch, Douglas and Penny Pruitt s minor daughter died from drowning in a swimming pool owned by Steve and Deborah Jockisch. Pruitt, 228 Ill. App. 3d at 295. At the time of their daughter s death, Douglas and Penny Pruitt were estranged and had not lived together for several years. Id. at 298. The Greene County Circuit Court appointed Douglas Pruitt as special administrator of his deceased minor daughter s estate. Id. Mr. Pruitt then filed suit against Steve and Deborah Jockisch under the Act for the death of his daughter. The defendants moved to dismiss pursuant to 735 ILCS 5/2-619, arguing that the decedent s mother, Penny Pruitt, had previously entered into a settlement with them for $10,000, and released all claims, including those arising under the Act. IDC Quarterly Volume 27, Number 1 (27.1.32) Page 2
Id. Penny Pruitt had been appointed special administrator of her daughter s estate by the Cass County Circuit Court prior to her husband s appointment by the Greene County Circuit Court. Id. In his response to the motion to dismiss, Douglas Pruitt maintained that the appointment of his estranged wife Penny Pruitt, was made without any notice to any person who might have a right to recover for the death of the decedent minor. Id. He argued that the settlement and release was void as to him and his children from a former marriage because the Cass County Circuit Court did not have jurisdiction over them at the time of Penny Pruitt s appointment or at any time before that estate was closed. Id. at 303. Court records revealed that Penny Pruitt filed an affidavit when she was appointed, stating that the whereabouts of Douglas Pruitt were unknown. Douglas Pruitt maintained that his estranged wife knew where his parents lived and could have ascertained where he was living from them. Id. at 298. She never provided notice to him of her appointment as special administrator by the Cass County Circuit Court. The Greene County Circuit Court denied the defendants motion to dismiss, but granted their Motion to Transfer Venue based upon forum non conveniens. Id. After the transfer to Cass County, the defendants moved to reconsider the denial of their motion to dismiss. On rehearing, the Cass County Circuit Court dismissed the wrongful death count. Id. Douglas Pruitt appealed. On appeal, the Illinois Appellate Court Fourth District reversed the decision of the Cass County Circuit Court and remanded the case with directions. Id. at 305. The Fourth District reasoned the Wrongful Death Act requires the giving of some notice of the proceedings to appoint a special administrator to those who might be able to recover under the Act. Id. at 302. The defendants argued that third parties, in dealing with a personal representative with letters of office, needed to have a reasonable way of being assured of the representative s power to act. Id. at 303. Because Penny Pruitt had been appointed by a trial court as a special administrator, the defendants argued they should be permitted to rely upon that appointment when entering into a settlement agreement with her. In response, the appellate court noted that a party dealing with a special administrator under section 3 of the Act can look to the records of the court making the appointment and find out if proof is shown that those entitled to notice by the terms of the petition were shown to be given that notice. Id. at 304. Because Douglas Pruitt was not provided notice of Penny Pruitt s appointment, the release signed by Penny Pruitt was void as to him. Id. at 305. However, the release signed by Penny Pruitt was not void as to her, and it would bar any additional recovery sought by her. Id. In its holding, the Pruitt court relied on In re Estate of Stanford, 221 Ill. App. 3d 154 (5th Dist. 1992). In Stanford, the notice requirements of the Illinois Probate Act were not met as to certain heirs listed on the petition for probate of the will. Stanford, 221 Ill. App. 3d at 155. After the estate was closed, one of the heirs filed a petition to declare all acts of the executor void as to her. Id. at 158. On appeal, the appellate court held that any orders were void as to the heir who did not receive notice since the court lacked personal jurisdiction over the uninformed heir. Id. at 162. Lessons Learned and Practice Tips The holding in Pruitt shifts the burden to the defendants in a wrongful death proceeding to ensure a proper special administrator appointment was made. As set forth in Pruitt, the defendant who fails to confirm the propriety of the appointment of the special administrator prior to settling claims under the Act runs the risk of additional exposure to unnotified heirs of the decedent. While the Pruitt court did not offer specific dictates on what constitutes notice to beneficiaries under the Wrongful Death Act, it did highlight the importance of checking the court file concerning the special administrator s appointment to determine if IDC Quarterly Volume 27, Number 1 (27.1.32) Page 3
proper notice was given to those entitled to notice by the terms of the petition. Pruitt, 228 Ill. App. 3d at 304. Additionally, the following are considered best practice when it comes to the issue of the propriety of the administrator s appointment: Review all probate court filings to determine if a representative has been appointed and compare that individual s name to the one appointed as the special administrator by the trial court. The probate file will provide a wealth of information about potential beneficiaries, assets of the estate and any payments received by the estate from other sources. Scrupulous attention should be paid to the notice required and actually provided to all heirs about the probate estate being opened; Issue interrogatories requesting the identification of all potential beneficiaries and ascertain whether they have been notified of the lawsuit; Ask detailed questions at depositions concerning the identities of all potential heirs, including any potential family members outside of marriage; Ensure that all release documents include language affirming that the plaintiff-representative provided notice to all heirs and request verification of such notice. Conclusion Due diligence in the early stages in the defense of a wrongful death case can save your client from potential exposure to multiple lawsuits and payments. Careful consideration of who the proper plaintiff is and plaintiff s relationship with the decedent can ensure that you are dealing with the proper party. A moment of reflection at the beginning of the case to consider these issues and close monitoring throughout the pendency of your case will save both you and your client time and money. About the Authors Edna L. McLain is an associate attorney of HeplerBroom, LLC. Ms. McLain graduated from the University of Illinois, Champaign-Urbana, in 1991, with a Bachelor of Arts degree in English, and she received her Juris Doctorate from the Saint Louis University School of Law in 2002. She is admitted to the bars of Illinois, Missouri and Wisconsin and the U.S. District Court of the Northern District of Illinois. Ms. McLain focuses her practice in the areas of medical malpractice, insurance defense and toxic torts. She is a member of the Illinois Association of Defense Trial Counsel. Tammera E. Banasek is a senior associate in the Chicago office of HeplerBroom LLC. Her practice focuses on the defense of medical / dental malpractice and other healthcare related litigation. She is a 1993 cum laude graduate of The John Marshall Law School. About the IDC The Illinois Association Defense Trial Counsel (IDC) is the premier association of attorneys in Illinois who devote a substantial portion their practice to the representation of business, corporate, insurance, professional and other individual defendants in civil litigation. For more information on the IDC, visit us on the web at www.iadtc.org or contact us at PO Box 588, Rochester, IL 62563-0588, 217-498-2649, 800-232-0169, idc@iadtc.org. IDC Quarterly Volume 27, Number 1 (27.1.32) Page 4
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